When options are more apparent than real

When Buckinghamshire decided to close over half its children’s centres, campaigners went to the High Court to fight a Judicial Review. This week, they lost, and the Council won its case.

Reading the judgment from R (ex parte L) v Buckinghamshire CC, however, one is struck by the way in which the Council structured its consultation options. There were three alternatives:

A. Retain all 35 children’s centres with reduced opening hours and a 30-35% cut in services

B. Create a network of 14 family centres with additional targeted services

C. Close all children’s centres and rely entirely on outreach services to support families and children.

Option B the was effectively a middle way between two extremes and was the Council’s preferred solution.

The Court was quite satisfied with the consultation, finding that the Gunning Principles were met. Councillors had an open mind, and were prepared to listen to arguments for each option. It had provided the necessary information and explained why a ‘no change’ scenario was not affordable when it needed to identify £3m of budget savings on early help services. Consultees had been questioned not just on the published options, but on any alternatives they might like to propose, and the ‘due regard’ requirement of the 2010 Equality Act had been observed.

So why were parents so unhappy? And how, after a long-running campaign could they credibly mount a legal challenge? What was it about the process that made them feel it was unfair? We have not spoken to the campaigners, but we suspect this is about the range of options on offer.

The 2006 Childcare Act was passed in pre-austerity days and Parliament gave local authorities extensive responsibilities to help children and families through a mix of universal provision (“…a network of children’s centres is accessible to all families with young children in their area …”) and targeted services (“… young people and families in the area who are at risk or poor outcomes …”)[1] and the same Act obliged councils to consult before closing centres. Note that closures are perfectly allowable – but only provided that alternative ways of supporting families are explained.

All this amounts to a framework of expectations that clearly never envisaged the wholesale reductions in expenditure that has tempted Buckinghamshire and others to withdraw these cherished services. In fact, the council makes a strong case for realigning its services to target its spending on more vulnerable children and their families – a sentiment that clearly gained the sympathy of the Judge.

But in any such re-structuring, (as is recognised by Managers seeking changes in the NHS, Schools, Police etc)  there are winners and losers. In this consultation, Option A would have retained widespread geographical coverage, supported universal provision but damaged attempts to target the most vulnerable. Option C did the opposite, favouring the provision of targeted support by abandoning the universal service. The compromise gave neither set of users what they really needed. Informed specialists asserted that universally available children’s centres were needed to identify and assist those with additional, complex or multiple needs, and that failure to do so might cost more in the end.

To anyone, therefore, committed to and eager to preserve the mixed provision model, only Option B would count. And that is about reducing 35 centres to 14. To such consultees, the choice of options was more apparent than real. In effect it was a take-it-or-leave-it single option that had probably been pre-determined. Their barrister quoted the famous case of Moseley v LB of Haringey where the Supreme Court ruled that consultation offer was unlawful. Here however, Mrs Justice Andrews drew an important distinction

In Moseley, the consultation process was found to be unfair because the consultation material conveyed a positively misleading impression that there were no possible alternative means of meeting the shortfall in Government funding other than by reduction in relief from council tax, when in fact there were other options available, albeit not favoured by the local authority.[2]

This was quite different, and the Council managed to avoid the mistakes made by others.

The case – rather like other recent challenges to consultations on changes to Special Educational Needs and Disability services (SEND) – highlights the agonising choices that councils must currently make. One of the key roles of a good consultation is to explain to a sometimes-reluctant population how difficult these decisions can be and to secure wider public involvement in determining the future nature of local public services. The claimants in this case may be disappointed, but the community at large is probably well served by having a genuine debate about the hard choices our society must make.

[1] Per Chapter 2 of the “Sure Start Centres Statutory Guidance”, 2013

[2] (per Par 44 of the Bucks CC case)

 

About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

Read more about Rhion

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